The Supreme Court’s instruction that the Babri Masjid dispute be resolved through out-of-court Negotiations/ Mediation evades the Court’s responsibility, as a Liberal-Democratic Institution, to preserve equal moral worth of all citizens. On the religious fault line, this responsibility is enshrined in the Constitution through the goal of Secularism. The Babri Masjid demolition is imbricated with question marks over India’s Secular credentials. It can never be too “sensitive” for the Supreme Court. Dealing with precisely such sensitive disputes is the Court’s moral responsibility as a Liberal-Democratic Institution.

Babri Masjid too “sensitive” for SC?

On 9 May 2011, the SC stayed the Allahabad High Court’s 2010 verdict directing equal division of the 2.77 acres of disputed territory (Babri Masjid) in Ayodhya between the Sunni Waqf Board, Nirmohi Akhara and the party for “Ram Lalla”. On 21st March 2017, BJP member and Rajya Sabha MP Subramanian Swamy filed an “urgent plea” before the Supreme Court. He asked the Court to decide the Babri Masjid dispute, pending before it for 6 years. On the back of the BJP’s thumping victory in the Uttar Pradesh Assembly Elections (312/403 seats), where it did not field a single Muslim candidate despite the 18.5% Muslim population of the State, the “urgency” of this plea is strategically timed.

The Supreme Court Bench, comprising Chief Justice Khehar, Justice DY Chandrachud and Justice SK Kaul instructed the dispute be settled through out-of-court Mediation/Negotiations because the matter is too “sensitive and sentimental”. CJ Khehar told Swamy, “First sit together and sort out. Both sides employ moderators and hold meetings”. The Chief Justice offered to appoint Mediators, or even Mediate himself and told the Rajya Sabha MP to inform the Court of the status of negotiations by 31 March.

Reactions

Babri Masjid Action Committee Convenor Zafaryab Jilani called an out of court settlement impossible, citing previous failed negotiations. On the other hand, the ruling dispensation has welcomed the decision. Veteran BJP leaders Uma Bharati and LK Advani applauded the Court’s emphasis on the need for “consensus”. Newly appointed UP Chief Minister Yogi Adityanath resonated this enthusiasm, saying “A settlement can be reached if parties decide to sit together and reach a consensus”. This should surprise no one. In its Manifesto for the UP Elections, the BJP promised to build a Ram Mandir on the site of the Babri Masjid “within the law”.

Why is Babri important?

A detailed history of the Babri Masjid dispute is beyond this article’s scope. To cut a long story short, the Babri Masjid was built it 1528-29 by Mir Baqi with the approval of Mughal Emperor Babur. The Hindu Right claims that the Babri Masjid was constructed by destroying a Hindu temple marking the “Janmboomi” of Ram. However, historians such as Vinay Lal have demonstrated how this claim has no historical basis, and none of the sources cited by the Hindu Right pass the muster of historical scrutiny. For instance, how did one of Ram’s greatest devotees, Tulsidas (1523-1532), who was a contemporary of Akbar (1556-1605), never mentions the alleged destruction of a Ram temple where the Babri Masjid stood?

On 22-23 December 1949 idols of Ram Lalla were placed inside the Babri Masjid by RSS workers. Subsequently, the Government locked the site, claiming it to be “disputed property”. On 6 December 1992, the Rath Yatra led by the BJP, prominently including LK Advani and Uma Bharati, culminated in the orchestrated demolition of the Babri Masjid by a Hindu mob. The Central Government led by Brahmin Congressman PV Narasimha Rao notoriously acquiesced to this mob violence.

The demolition of Babri Masjid goes to the question: Can the Muslim be an Indian on his/her own terms, not those of the majoritarian Hindu? The Mosque is a powerful symbol of Muslim sovereignty. It is the site of the Muslim embracing his/her religious identity, above all other forms of identity. Therefore, the Hindu-Right’s attack on the Mosque, and the “Secular” Centre’s acquiescence to this assault is symbolic of the second-grade citizenship accorded to the Indian Muslim. Combine this with the successful disenfranchisement of the Muslims carried out by the BJP in the UP Elections. The Babri Masjid’s symbolic importance to Indian Muslims and to Indian Secularism, especially in 2017, cannot be overstated.

Secularism a condition of India’s Liberal-Democratic claims

Secularism is a central tenet of Indian liberal-democracy. All Liberal-Democracies are grounded in a conception of its citizens’ equal moral worth, irrespective of religion. In the Indian context, given the partition of British India along religious lines, the only method to ensure such equal moral worth was through a secular model whereby religious groups have equal moral dignity in the State’s eyes.

This formal equality conferred by the Indian State was in contradiction with Indian society. Socially, Hindus were not only the numerical majority, but were also politically powerful. For instance, of its 210 members, the Constituent Assembly comprised 155 upper caste Hindus, but merely 4 Muslims. However, despite Congress’ Brahmanical composition and “Soft Hindutva” policies, the Indian Muslim has never been as vulnerable as he/she is today. For instance, following the BJP’s victory in UP, residents of Bareilly (approximately 10% Muslim population) woke up to posters warning Muslims to leave the village by 30 December, 2017.

Role of Liberal-Democratic Institutions

Liberal-Democracies set up institutions to curb democracy’s majoritarian tendencies and ensure equal moral status of all individuals and groups. For instance, the Police is not to participate in riots, but curb them by arresting perpetrators and protecting victims. The Judiciary is arguably the most important of such institutions because it breathes life into the Social Contract between the State and Society. In India, the Constitution is that Social Contract.

Instructing parties to enter into negotiations is simply the Court washing its own hands of the controversial matter. In India’s largest State where every fifth person is a Muslim, the Indian Muslim has been shunned from the public space through legal, “free and fair” elections. Read with the track record of the ruling dispensation, it is clear that no negotiations between Hindu and Muslim representatives over Babri Masjid can be fair because of the gross imbalance of bargaining-power between the two communities. Can negotiations between the White American and the Black American or the Indian and the Kashmiri ever be fair? Without the intervention of a relatively (at least) neutral State, such negotiations become sites of reproduction of power relations between groups. By withdrawing itself, the Supreme Court gives the powerful Hindu-Right space to mould the Indian Muslim’s terms of citizenship. The SC’s Constitutional responsibility to uphold secularism is designed to curtail (at least) the flexing of such majoritarian muscle. Hence, the SC instructing parties to settle the Babri Masjid dispute-a matter questioning the heart of India’s liberal-democratic claims-through negotiations is an abdication of its responsibility to curb the Indian State’s Hindu majoritarian tendencies.